Abstract
This chapter highlights the interaction of science and law in the anti-doping field. It examines its relevance at all stages of the prosecution of cases where a doping agent, a prohibited substance, is identified in the bodily fluids of an athlete. It concludes by arguing how the anti-doping field in its complexity requires a tailored regulatory framework in support of a science which, on its end, is constantly called on to evolve in order to provide the required evidence at the standard of proof set in the rules.
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Notes
- 1.
More information is available from: https://www.wada-ama.org/en/governance
- 2.
For example, among other progresses, the development of the athlete biological passport, the long-term storage of samples for future re-analysis, and the development of new analytical methods
- 3.
Performance-enhancing practices already existed during the Greek era (see, e.g., https://www.nationalgeographic.com/history/article/olympics-scandal-doping-ancient-greece-lochte))
- 4.
The estimated global amount spent yearly by commercial companies in sports sponsorship is close to 50 billion USD (see, e.g., https://www.marketingdive.com/news/sports-sponsorship-spend-to-increase-the-most-in-a-decade-report-says/571295/)
- 5.
For example, in 2019, the Wimbledon winner’s prize money amounted to 2,954,247 USD, while the runner-up’s prize money was half of this amount (https://www.perfect-tennis.com/prize-money/wimbledon/)
- 6.
The European Court of Human Rights considered that the fight against doping in sport was of public interest and stated that “while action to combat doping is a public-health issue in professional sport, it concerns all athletes. The above-mentioned reports show that doping affects amateur sports to a worrying extent, in particular among young athletes”. More information is available in: http://hudoc.echr.coe.int/eng?i=001-180442
- 7.
- 8.
- 9.
- 10.
These subsequent review processes were driven by small drafting teams, comprised of senior WADA staff and external experts. Their goal was to review and analyse stakeholders’ feedback and incorporate it into successive working drafts of the Code at each phase of the consultation process, until the adoption of the final version by the WADA Foundation Board
- 11.
As set out in article 23.1 of the Code, the International Olympic Committee, International Federations, the International Paralympic Committee, National Olympic Committees, National Paralympic Committees, Major Event Organizations, National Anti-Doping Organizations, and other organizations having significant relevance in sport may become Code signatories
- 12.
For some of the signatories, it is somewhat a “forced agreement”. Indeed, the International Federations included in the Olympic programme and other organizations that are part of the Olympic movement (e.g. national Olympic committees) must accept and implement the Code (see article 43 of the Olympic Charter)
- 13.
The purpose of the International Standard for Code Compliance by Signatories (ISCCS) is to set out the relevant framework and procedures for ensuring Compliance by Signatories to the Code (www.wada-ama.org/sites/default/files/resources/files/worldconferencebackgrounder_0.pdf)
- 14.
The International Standard for Testing and Investigations (ISTI) establishes mandatory standards for all that relates to conducting anti-doping testing (from planning, sample collection, transport, etc.) and also establishes mandatory standards for an efficient and effective gathering, assessment, and use of anti-doping intelligence and for the efficient and effective conduct of investigations (www.wada-ama.org/sites/default/files/resources/files/worldconferencebackgrounder_0.pdf)
- 15.
The Prohibited List identifies the substances and methods prohibited in- and out-of-competition and in particular sports (www.wada-ama.org/en/what-we-do/international-standards#ProhibitedList)
- 16.
The purpose of the International Standard for Laboratories (ISL) is to ensure production of valid test results and evidentiary data and to achieve uniform and harmonized results and reporting from all accredited laboratories (www.wada-ama.org/en/what-we-do/international-standards#Laboratories)
- 17.
The purpose of the International Standard for Therapeutic Use Exemptions (ISTUE) is to ensure that the process of granting Therapeutic Use Exemptions (TUEs) is harmonized across sports and countries (www.wada-ama.org/sites/default/files/resources/files/worldconferencebackgrounder_0.pdf)
- 18.
The purpose of the International Standard for the Protection of Privacy and Personal Information (ISPPPI) is to ensure that organizations and persons involved in anti-doping in sport apply appropriate, sufficient, and effective privacy protection measures to the personal information they process (https://www.wada-ama.org/sites/default/files/resources/files/worldconferencebackgrounder_0.pdf)
- 19.
The purpose of the International Standard for Results Management (ISRM) establishes mandatory standards for minimal requirements that all anti-doping organizations (ADOs) must follow in respect to the results management and hearing processes of potential anti-doping rule violations (www.wada-ama.org/sites/default/files/resources/files/worldconferencebackgrounder_0.pdf)
- 20.
The International Standard for Education (ISE) establishes mandatory standards for the planning, implementation, monitoring and evaluation of effective education programmes (www.wada-ama.org/sites/default/files/resources/files/worldconferencebackgrounder_0.pdf)
- 21.
For an exhaustive list of all Technical Documents, see https://www.wada-ama.org/en/resources/science-medicine/technical-documents-index
- 22.
See, for example: http://hudoc.echr.coe.int/eng?i=001-180442 and http://hudoc.echr.coe.int/eng?i=001-186828
- 23.
This review is limited to questions such as jurisdiction, the composition of the CAS hearing panel or the respect of key principles (right to be heard, equal treatment of parties, etc.). The Swiss Federal Tribunal does not conduct a review of the merits of a case and cannot amend a CAS decision. It can only refer the case back to the CAS if irregularities are established
- 24.
See article 2.1 of the Code
- 25.
See article 2.2 of the Code. The use of a prohibited substance can be established by any reliable means (see article 3.2 of the Code). All cases brought forward as a result of the Athlete Biological Passport system are “use” case, as the substance is not directly detected in the athlete’s sample but its use is established due to the effect its intake had on selected blood parameters
- 26.
For example, in 2015, a total of 1929 anti-doping rule violations were established, among which 1649 were the consequence of the presence of a prohibited substance in the athlete’s sample; see https://www.wada-ama.org/sites/default/files/resources/files/2015_adrvs_report_overview_web.pdf
- 27.
Accessed from: assembly.coe.int/nw/xml/XRef/X2H-Xref-ViewHTML.asp?FileID-9025&lang=eng
- 28.
Article 1 of the Code
- 29.
For example, an athlete can benefit from a reduced sanction if he/she is able to establish at the required standard of proof how the substance entered his/her body and that the his/her fault or negligence is not significant
- 30.
Article 4.1 of the Code
- 31.
The amended List is always circulated for stakeholder comment and is then to be approved by WADA Executive Committee, where the proposed changes sometimes create some debate and political challenge, as the perception of and the resort to a particular substance may vary among countries and cultures. This was the case for the inclusion of meldonium, for example, which was only used in countries of the former Soviet Union. The consumption of coca leaves, which leads to cocaine-positive, is another example
- 32.
Article 4.3.1 of the Code
- 33.
A substance may also be included on the List if it has the potential to mask the use of another prohibited substance (see article 4.3.2 of the Code)
- 34.
In the 2021 Code, health has been moved to the top of the list of rationales and is specifically mentioned in a sentence preceding that list (see Fundamental Rationale for the World Anti-Doping Code, page 13 of the Code)
- 35.
See Fundamental Rationale of the 2021 World Anti-Doping Code
- 36.
Article 4.2.2 of the Code
- 37.
For example, when determined that below a certain level, the effect on performance is negligible
- 38.
Article 3.2.1 of the Code
- 39.
CAS 2018/A/599: “Doping is an offence which requires the application of strict rules. If an athlete is to be sanctioned solely on the basis of the provable presence of a prohibited substance in his body, it is his or her fundamental right to know that the Respondent, as the Testing Authority, including the WADA-accredited laboratory working with it, has strictly observed the mandatory safeguards”
- 40.
Article 3.2.1 of the Code
- 41.
The CAS considered in a decision that “the circumstance that the concentration was lower than 50% of the MRPL for cocaine is irrelevant. In fact, cocaine is a non-threshold substance and the finding of any quantity in an athlete’s sample constitutes an anti-doping rule violation, whatever the laboratory reporting obligations are” (CAS 2017/A/5078)
- 42.
This minimum 1-year ban could only be pronounced if the athlete was able to establish at the required standard of proof that the substance at stake was used out of competition in a context unrelated to sport performance (see article 10.23 of the 2015 Code)
- 43.
Article 10.2.4 of the Code
- 44.
As soon as this solution appeared to be supported by most stakeholders during the Code revision process and before going any further with it, the Code drafters liaised with the List Expert Group
- 45.
For example, it gives a WADA-accredited Laboratory a presumption of compliance, which is a necessary support, but also clearly establishes the standards to be met to benefit from this presumption, and thus guides the science
- 46.
See article 3.2.1 of the Code
- 47.
This is important as anti-doping science cannot be validated by scientists involved in anti-doping matters. By requiring such a recognition, the Code further protects the science as it makes it more difficult to be challenged
- 48.
It is also to be noted that this rule has evolved over time as in the 2015 Code: indeed, under the 2015 Code, the consultation and the peer review were required. The bar has been somewhat lowered
- 49.
In the decision CAS 2011/A/2566, the Panel considered that the appellant (WADA) failed to meet the required burden of proof that the decision limits were reliable
- 50.
In the decision CAS 2014/A/3488, the Panel considered that “the Joint Publication Paper has addressed the doubts expressed by the Panel in the case CAS 2011/A/2566 and that it has done so in a manner that appears to be convincing”
- 51.
See article 17 of the Code
- 52.
See article 6.6 of the Code
- 53.
For example, the International Olympic Committee has a programme in place to reanalyse stored samples collected during the Olympic Games. This program is fruitful as a significant number of adverse analytical findings were reported (https://stillmed.olympic.org/media/Document%20Library/OlympicOrg/IOC/Who-We-Are/Commissions/Disciplinary-Commission/IOC-reanalysis-programme-25-January-2017-eng.pdf)
- 54.
See article 6.2 of the Code. The Monitoring Program was further extended in the latest version of the Code: In addition to monitoring substances already in the monitoring program, the modification to Article 4.5 provides that WADA may monitor data pertaining to other substances in order to see if they should be included on either the monitoring program or Prohibited List
- 55.
With finasteride, for example, due to the evolution of analytical method, the masking effect of this substance became useless, which led to the removal of this substance from the List
- 56.
See article 27.6, which was an evolution proposed in the 2021 Code
- 57.
CAS 2018/A/5768
- 58.
Glucocorticoids are prohibited when administered by oral, intravenous, intra-muscular, or rectal routes
- 59.
All systemic and injectable routes of administration are prohibited in the 2022 Prohibited List
- 60.
A specific working group was established in 2019 by WADA to address the question of contamination. This is a complex issue as sanctioning an honest athlete whose sole fault is the ingestion of contaminated meat must be avoided, but widening the net creates a risk to let real cheats escape any sanction
- 61.
CAS 2011/A/2384 & CAS 2011/A/2386
- 62.
CAS 2017/A/5296
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Sieveking, J. (2022). The “Forced” Union of Science and Law. In: Rabin, O., Corazza, O. (eds) Emerging Drugs in Sport. Springer, Cham. https://doi.org/10.1007/978-3-030-79293-0_5
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